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TMI Blog2017 (1) TMI 1341X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of re-filing the 30 cases with which we are concerned, since the complaints had not been returned to the petitioner and taken by the petitioner in view of the intervening stay of the order dated 30.08.2014 by this Court, which stay continued to operate thereon till the disposal of the SLPs as infructuous vide order dated 11.03.2016. Cannot appreciate the observation made by the learned Magistrate in the impugned order accusing the petitioner of resorting to “forum shopping”. In the face of the retrospective amendment carried out to the Negotiable Instruments Act, the complaints were correctly instituted at Delhi and the petitioner had sought transfer of the complaints to the Court of the learned MM, New Delhi District at Patiala House Courts, where the complaints could be properly maintained. There was no occasion for the learned Magistrate to make any such observation, since the petitioner has diligently pursued its remedies, firstly, by approaching this Court to assail order dated 30.08.2014, and thereafter, the Supreme Court. No merit in the submission of learned counsel for the respondents that the complaints were not “pending” on account of the passing of the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mon impugned order dated 02.06.2016, the applications filed by the petitioner/ complainant for transfer of the said 30 complaints have been dismissed on the premise that the said complaints stood returned by the learned M.M. on 30.08.2014 with direction to re-file the same in the Court having territorial jurisdiction in pursuance of the judgment of the Supreme Court dated 01.08.2014 in Dashrath Rupsingh Rathod Vs. State of Maharashtra Anr., (2014) 9 SCC 129, and thus, the Court of the learned Magistrate had become functus officio. The learned Magistrate held that Negotiable Instruments (Amendment) Act, 2015 is applicable only in respect of pending cases, and the said 30 complaint cases of the complainant were no longer pending after passing of the order dated 30.08.2014. 3. These 30 petitions arise in the same factual background, and the grievance of the petitioner in these 30 petitions is also in respect of common impugned order dated 02.06.2016. Learned counsels have addressed common arguments in all these cases. In fact, respondent No.1 has filed its reply in Trp.(Crl.) No.37/2016 and learned senior counsel for the respondents has submitted that the said reply may be re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ending in various courts spanning across the country. One approach could be to declare that this judgment will have only prospective pertinence i.e. applicability to complaints that may be filed after this pronouncement. However, keeping in perspective the hardship that this will continue to bear on alleged respondent-accused who may have to travel long distances in conducting their defence, and also mindful of the legal implications of proceedings being permitted to continue in a court devoid of jurisdiction, this recourse in entirety does not commend itself to us. Consequent on considerable consideration we think it expedient to direct that only those cases where, post the summoning and appearance of the alleged accused, the recording of evidence has commenced as envisaged in Section 145(2) of the Negotiable Instruments Act, 1881, will proceeding continue at that place. To clarify, regardless of whether evidence has been led before the Magistrate at the pre-summoning stage, either by affidavit or by oral statement, the complaint will be maintainable only at the place where the cheque stands dishonoured. To obviate and eradicate any legal complications, the category of complaint c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed in respect of one of these cases, and on 15.10.2014, the Court had stayed the operation of the order dated 30.08.2014. Thus, in all the 37 complaint cases which had been directed to be returned to the complainant vide order dated 30.08.2014 (for being filed before the competent Court having jurisdiction at Raigarh, Chhattisgarh), the petitioner obtained stay of the operation of the order passed by the learned Magistrate on 30.08.2014. 11. Eventually, vide judgment dated 16.12.2014, this Court dismissed all the Criminal Miscellaneous (Main) petitions preferred by the petitioner by holding that the Courts in Delhi had no territorial jurisdiction to entertain and try the complaints. The order dated 30.08.2014 passed by the learned MM in each of the cases was upheld. 12. The petitioner then preferred Special Leave Petitions (SLPs) before the Supreme Court to assail the common judgment dated 16.12.2014. The Supreme Court issued notice in the SLPs on 13.01.2015 and also granted interim stay of the judgment passed by this Court on 16.12.2014. The Supreme Court also ordered that in the meantime, the petitioner may re-file the complaint which the Magistrate will keep it on re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e disposed of as infructuous on 11.03.2016. 17. The submission of the petitioner is that although the petitioner s applications for revival of the complaints remained pending before the learned MM, Saket, but since the Court at Saket did not have territorial jurisdiction in terms of the amended Act, the petitioner filed applications before the learned MM, Saket seeking transfer of the said complaints to the competent Court at Patiala House Courts having jurisdiction in the matter. The applications were filed on the premise that under Section 142(2)(a) of the Negotiable Instruments Act, 1881, as amended by Negotiable Instruments (Amendment) Act, 2015, the complaint could be preferred within the jurisdiction of the Court where the branch of the bank where the payee or holder in due course, as the case may be, maintains the accounts, is situated. Since the petitioners/ complainant s bank account in respect of the cheques involved in the complaints in question were maintained with the State Bank of India having its branch at Tolstoy Marg, New Delhi, which falls within the jurisdiction of the PS New Delhi District, New Delhi, i.e. within the jurisdiction of the Patiala House Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. State (Govt. of NCT of Delhi) Another, Crl.M.C. No.4239/2015 decided on 13.10.2015 , wherein this Court has considered the impact of the amendment carried out to the Negotiable Instruments Act post the decision of the Supreme Court in Dashrath Rupsingh Rathod (supra), as also the decision of the Supreme Court in Bridgestone India Private Limited Vs. Inderpal Singh, (2016) 2 SCC 75, wherein the Supreme Court has clearly held that the amendment to the Negotiable Instruments Act by introduction of Section 142A, is retrospective. 22. On the other hand, Mr. Pahwa, learned senior counsel for the respondents submitted that the view taken by the learned Magistrate in the impugned common order is correct and does not call for interference, since the amendment to the Negotiable Instruments Act is in respect of pending cases and it cannot be said that in the present cases complaints were pending since they had been directed to be returned to the complainant vide orders dated 30.08.2014 for being re-filed within thirty days before the concerned Magistrate at Raigarh, Chhattisgarh. Thus, the learned Magistrate was correct in observing that he had become functus officio after havi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e this Court, including in respect of the said 7 cases. Apparently, the petitioner was not returned the original complaints in respect of the 30 cases in question by the time this Court, while entertaining the petitioner s Criminal Miscellaneous (Main) petitions, stayed the operation of the order dated 30.08.2014. The effect of the stay of the common order dated 30.08.2014 by this Court at the instance of the petitioner, obviously, was that the petitioner was not obliged to collect the complaints after replacing the same with certified copies and to file the same before the competent Court at Raigarh, Chhattisgarh. In fact, the learned Magistrate was also bound by the said stay order and could not have directed return of the complaints for being filed before the competent Court at Raigarh, Chhattisgarh. Once stayed, the said order could not have been given effect to. In Mulraj v. Murti Raghonathji Maharaj AIR 1967 SC 1386, the Supreme Court has held that when there is a stay granted by a superior court of the proceedings before a subordinate court it is bound to obey it and if it does not, it acts illegally, and all proceedings taken after the knowledge of the order would be a nul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive, and secondly, that the complaint was no longer pending before the Trial Court since the Trial Court had directed return of the complaint vide order dated 16.01.2015 and consigned the file to the Record Room. This Court rejected the submissions of the petitioner/ accused/ Pankaj Garg by, inter alia, observing that: 7. it is not in dispute that order dated 16.01.2015 passed by learned Trial Court was in view of the decision of the Apex Court in Dashrath Rupsingh Rathod (supra) and thereafter, the amendment has been carried out by the ordinance mentioned above. Therefore, the complaint case remained at the same place where it was prior to the amendment to the statute. 30. The Court further observed: 9. As per above provision the cases which were transferred for lack of territorial jurisdiction as the bank of the drawer was not situated within the territorial jurisdiction of the Court concerned have been directed to be returned and tried by the same Court. It is clear from the order of learned MM dated 16.01.2015 that complaint case of respondent No.2 was directed to be returned as the bank of the drawer/ petitioner does not situate within the territorial jur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Section 142A was incorporated in the Negotiable Instruments Act. The Supreme Court then proceeded to analyse the said provisions as follows: 13. A perusal of the amended Section 142(2), extracted above, leaves no room for any doubt, specially in view of the Explanation thereunder, that with reference to an offence under Section 138 of the Negotiable Instruments Act, 1881, the place where a cheque is delivered for collection i.e. the branch of the bank of the payee or holder in due course, where the drawee maintains an account, would be determinative of the place of territorial jurisdiction. 14. It is, however, imperative for the present controversy, that the appellant overcomes the legal position declared by this Court, as well as, the provisions of the Code of Criminal Procedure. Insofar as the instant aspect of the matter is concerned, a reference may be made to Section 4 of the Negotiable Instruments (Amendment) Second Ordinance, 2015, whereby Section 142-A was inserted into the Negotiable Instruments Act. A perusal of sub-section (1) thereof leaves no room for any doubt, that insofar as the offence under Section 138 of the Negotiable Instruments Act is concerned, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es used with reference to Section 142(2), in Section 142-A(1) gives retrospectivity to the provision. 17. In the above view of the matter, the instant appeal is allowed, and the impugned order passed by the High Court of Madhya Pradesh, by its Indore Bench, dated 5-5-2011 [Inderpal Singh v. Bridgestone India (P) Ltd. Misc. Criminal Case No. 2677 of 2010, order dated 5-5-2011 (MP)] , is set aside. The parties are directed to appear before the Judicial Magistrate, First Class, Indore, on 15-1-2016. In case the complaint filed by the appellant has been returned, it shall be re-presented before the Judicial Magistrate, First Class, Indore, Madhya Pradesh, on the date of appearance indicated hereinabove. (emphasis supplied) 34. Thus, the Supreme Court very clearly held that Dashrath Rupsingh Rathod (supra) would not non-suit the appellant/ complainant from maintaining its complaint before the learned Judicial Magistrate First Class, Indore in view of the amendment carried out by the Ordinance, which matured into an Amendment Act. The Supreme Court also held the amendment to be retrospective such that it went back in time even before Dashrath Rupsingh Rathod (supra). The Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e complaints, the Supreme Court while passing the interim order dated 13.01.2015, permitted the petitioner to re-file the said complaints with the Magistrate, and in consequence thereof, the said 7 complaints apparently were re-filed by the petitioner before the Court of the learned MM, Patiala House Courts. 40. I cannot appreciate the observation made by the learned Magistrate in the impugned order accusing the petitioner of resorting to forum shopping . In the face of the retrospective amendment carried out to the Negotiable Instruments Act, the complaints were correctly instituted at Delhi and the petitioner had sought transfer of the complaints to the Court of the learned MM, New Delhi District at Patiala House Courts, where the complaints could be properly maintained. There was no occasion for the learned Magistrate to make any such observation, since the petitioner has diligently pursued its remedies, firstly, by approaching this Court to assail order dated 30.08.2014, and thereafter, the Supreme Court. 41. I do not find any merit in the submission of learned counsel for the respondents that the complaints were not pending on account of the passing of the order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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